Dugan v. Com.

• Decision Date: 25 March 1960
• Parties: Lawrence J. DUGAN, Appellant, v. COMMONWEALTH of Kentucky.
• Court: United States State Supreme Court — District of Kentucky

Page 755

333 S.W.2d 755

Lawrence J. DUGAN, Appellant, v. COMMONWEALTH of Kentucky.

Court of Appeals of Kentucky.

March 25, 1960.

John Y. Brown, Lexington, for appellant.

Jo M. Ferguson, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.

CULLEN, Commissioner.

Upon trial under an indictment charging him with the murder of his girl friend, Lawrence Dugan was convicted of voluntary manslaughter and given a twelve-year sentence. Appealing from the judgment, Dugan maintains that the trial court erred in not giving an insanity instruction and in refusing to admit testimony as to the results of a truth serum test that he underwent.

Dugan was a member of the Kentucky State Police and at the time of the offense was in full uniform and was wearing a service revolver. The girl was killed by a single shot from the revolver. There was evidence for the Commonwealth that the girl had transferred her affections to another man; that Dugan was jealous and on two previous occasions had threatened to kill the other man; and that at the moment of the shooting the girl was in the act of getting out of Dugan's car in which the two had been sitting and talking while it was parked near the girl's home.

Dugan's testimony was that as the two sat and talked in his car he suddenly became very depressed and had an urge to commit suicide; he took his revolver from its holster with the purpose of shooting himself; the girl grabbed for the revolver in an attempt to stop him and in the struggle for possession of the gun it went off accidentally. He further testified that on several previous occasions, over a period of years, he had been subject to fits of depression in which he had felt the urge to kill himself, and on two recent occasions, when he was in the company of the girl, he had attempted to shoot himself but she had succeeded in stopping him. He also said he had sought medical treatment for relief from the recurring depressions. A psychiatrist testified that it is rather common for persons who suffer periods of depression to think of destroying themselves, and that it is a sign of emotional immaturity. However, there was no medical testimony that Dugan was psychotic.

The appellant appears to concede the proposition that if the shooting, though accidental and unintentional, was the result of or was occasioned by a voluntary and intentional wrongful act, such as an attempt to commit suicide, a conviction of voluntary manslaughter would be justified. See Commonwealth v. Hicks, 118 Ky. 637, 82 S.W. 265, holding that suicide is a common-law felony in Kentucky; also Commonwealth v. Mink, 123 Mass. 422, 25 Am.Rep. 109, and State v. Levelle, 34 S.C. 120, 13 S.E. 319, holding that the accidental killing of another person, in the course of an attempt to commit suicide, is a criminal homicide amounting at least to voluntary manslaughter. Further see Ellison v. Commonwealth, 12 Ky.Op 665. But the appellant's theory is that if the initial wrongful act (here, the attempt to commit suicide) was the result of an insane impulse, criminal responsibility cannot attach by reason of an accidental killing growing out of the wrongful act. He argues that the court should have given an insanity instruction embodying this theory.

The appellant's argument, as presented in his brief, is that there should have been an insanity instruction stating the two tests of whether he knew right from wrong and whether he knew the nature and quality of his acts. However, there was no basis for such an instruction, because there was no evidence, even in the defendant's own testimony, to indicate that he did not know right from wrong or did not know the nature and quality of his acts. The only argument that reasonably could be made is that there should have been an instruction stating the test of whether as the result of mental unsoundness the...